Shirlow v Translink

(November 2007 and June 2008, Industrial Tribunal Northern Ireland)

An existing employee applied for a job as a signalman. He failed a 'competence-based interview' as he did not provide enough examples and evidence of his competencies. The tribunal held that his stammer was a disability. However, it held there was no breach of the duty to make reasonable adjustments because the employer could not reasonably be expected to know of his disability. In any event there would have been no breach of the duty to make reasonable adjustments, particularly because the claimant's failure to pass the interview was more down to lack of preparation than speech difficulties.

Facts

The claimant had a stammer, and applied for a job with his existing employer as a signalman in Castlerock. He had been 19 years with his employer, which runs train and bus services in Northern Ireland. He was currently a trackwalker, but had previously been employed by them as a signalman in Castlerock and then in Coleraine.

The claimant passed the written and computerised testing at an assessment centre. However, he failed on a competence-based interview at the assessment centre which aimed to test seven core competences, e.g. communication skills, interpersonal skills and calmness in a critical situation. Applicants were required to provide examples of the skill being tested. The claimant was assessed as not passing four of the seven core competences - in effect failing to provide sufficient evidence or examples that he was competent in the relevant area being tested. For those who passed this interview, there was to be a final interview process held on another date.

He claimed there had been a breach of the duty to make reasonable adjustments in relation to the competence-based interview.

Summary of the decision

The tribunal held that his stammer was a disability, mentioning amongst other things that he employed avoidance strategies.

However, the tribunal found there was no breach of the duty to make reasonable adjustments. It accepted that the interview arrangements put the claimant at a 'substantial disadvantage' - this is a key precondition for the reasonable adjustment duty to apply. However, the duty did not apply here because the employer could not reasonably be expected to know of the claimant's disability. His line manager knew of it. However, those involved in the recruitment did not, and the claimant had consistently failed to mention the stammer when asked about disabilities.

Even apart from the employer's lack of knowledge of the stammer, the tribunal said there was no breach of the duty to make reasonable adjustments. This was particularly in view of the fact that the claimant's failure to pass the interview was more down to lack of preparation than any failure to be able to say what he wanted.

The following is a more detailed summary, but follow the links above for the full decisions.

Stammer was a 'disability'

The employer suggested that the claimant's speech difficulty only came out in unusual situations such as a job interview or appearing before the Industrial Tribunal, and that in his answers to cross examination the claimant demonstrated only occasional lapses from normal fluency.

The tribunal accepted that the stammer was a 'disability' within the DDA. The claimant took longer than someone who does not have an impairment to say things, and thus satisfied the test that the effect of his impairment was 'substantial' and 'adverse'. The tribunal noted that the claimant had difficulty with jobs where he had to speak a lot. He would employ avoidance strategies by asking other people to do things for him. He had difficulty with shopping and getting meals.

As to the effect of the impairment being substantial in 'normal day-to-day activities', the tribunal said that plainly speech was the most normal of day-to-day activities, and the claimant indicated he had specific difficulties when shopping and getting a meal. The tribunal again mentioned the avoidance strategies he employed, and his particular difficulties with jobs where he had to speak a lot.

Extracts from s.4A DDA (Northern Ireland) on reasonable adjustments:

(1) Where -
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) ...,
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent provision, criterion or practice, or feature, having that effect.

(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know -
(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or
(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)."

Reasonable adjustments: introduction

The claimant stated at the hearing that he accepted there would need to be an oral element to the selection process. Issues which the claimant raised with the oral competence-based interview were as follows:

That the interview was time bound. The employer said it was not.

The claimant found the use of a single interviewer unsettling because the lack of eye-to-eye contact affected his stammer. He would have preferred two interviewers.

The interviewer's failure to acknowledge his impediment and reassure the claimant that he could take his time made the claimant uncomfortable.

The tribunal accepted that the claimant's stammer meant it could take him longer than someone who does not have a stammer or other speech impediment to say something. The interviewer, in giving evidence, confirmed the claimant's speech impediment was notable. However the interviewer's notation regarding the candidate's speech impediment was noted only in the area of communication skills, as it was relevant to that area. The speech impediment in its own right did not bring an assessment of not competent. The interviewer considered during the interview the claimant did not have more to say, rather than he was not able to say more.

Reasonable adjustments: claimant was at a substantial disadvantage

It is a precondition of the duty to make reasonable adjustments that the claimant is placed at a substantial disadvantage by a provision, criterion or practice. 'Substantial' means here more than minor or trivial.

The tribunal said the provision, criterion or practice, or arrangement, which placed the claimant at a disadvantage was not solely the oral element to the selection process but the arrangements made for the oral element - the use of a single interviewer, the time parameters set for the interview and the failure of the interviewer to acknowledge his speech impediment. The substantial (i.e. more than minor or trivial) disadvantage which this allegedly caused the claimant was the fact that as it would take him longer to answer questions orally than someone who did not have such a speech impediment, he restricted his answers to the questions to the most basic detail. Also the embarrassment and anxiety caused to him by the oral element restricted his ability to display the essential competences.

The tribunal noted that with seven competence areas to be covered in approximately a 30 minute time span, it allowed for approximately four minutes per competence area. The tribunal said it had seen and heard the claimant while in the pressurised situation of representing himself at hearing. The tribunal found the clarity of the claimant's evidence not impeded by his speech impediment most of the time. However, it was in no doubt that, while on most occasions the claimant spoke with relative clarity, his impediment was noticeable and when present could affect the clarity of his answers.

Accordingly the tribunal concluded that the cumulative effect of the disadvantage caused to the claimant by the pressure of an oral interview with the consequent embarrassment and anxiety was more than minor and trivial, i.e substantial.

Reasonable adjustments: no duty as 'lack of knowledge defence' applied

The employer argued, and the tribunal accepted, that the employer could not reasonably be expected to know the claimant had a disability likely to put him at a substantial disadvantage in the assessment process for this signalman post. The tribunal said it found this a difficult issue, as the claimant had never taken the opportunities provided to him by the employer to flag up to them his disability. On the other hand he was a long-standing employee of the company. Relevant facts were:

The application forms for the post included a monitoring form to ascertain whether any candidate, internal or external, had any disability. The claimant in the form he returned to the employer indicated that he did not consider that he had a disability.

All candidates for the assessment centre received a letter including the information that those who passed a series of tests would undergo "an interview to assess specific skills relevant to the role of Signaller". The claimant accepted he was on notice that he could be required to undergo an oral interview as part of the selection process.

The letter of invitation to the assessment centre also stated "if any special arrangements are required in relation to candidates with disabilities, please contact us as soon as possible on" and a contact number within the employer's organisation was provided. The claimant accepted that he made no contact with the employer to flag up any concern he had regarding his disability or relating to the proposed interview part of the recruitment process.

The claimant's line manager knew the claimant had a speech impediment. The line manager was involved in settling the criteria to be used in the recruitment exercise, but was not involved in settling the arrangements for the initial selection process.

The general staff in the employer's human resources department did not know of the speech impediment.

In 2004 when all employees were surveyed as to whether or not they had any disability, the claimant returned a negative response. Had the claimant flagged up in the 2004 form or in the monitoring form submitted with his application that he had a disability, the employer had in place a system to highlight that indication to those responsible for the overall recruitment exercise.

The tribunal could find no case law on this issue in specific employment situations. In the wider civil law the tribunal noted the decision of Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 6, where the question was whether mental health injury allegedly sustained as a result of the plaintiff's employment was "reasonably foreseeable". This appeared to the tribunal a somewhat similar test as that applicable in the DDA. One of the propositions set out by the Court of Appeal read: "Foreseeabilty depends on what the employer knows or ought to know about the individual employee. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability". The court also went on to state, "The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further inquiries of his medical advisers". The tribunal also took into account various other statements from the Court of Appeal judgment.

In the present case, the employer had a substantial number of employees throughout Northern Ireland, and would be rightly criticised if the same system or process for recruitment to that post were not utilised for both internal and external candidates. It appeared to the tribunal that there was no "good reason" for the respondent to question what he had been advised by the claimant on two occasions - that the claimant had no disability within the Disability Discrimination Act. The claimant had attended three internal selection processes where formally no adjustment or disability had been recorded by the relevant department - Human Resources. Further there was a system operated by the employer that permitted the claimant on more than one occasion to flag up his vulnerability.

Once the claimant was at the interview, it is clear from the evidence and the notes of the interviewer that the claimant's speech impediment was notable. However the tribunal found credible interviewer's explanation for not commenting on it. He had no way of knowing whether the stammer was as a result of nerves or a 'disability' - as no information had been provided to him with regard to that issue.

Accordingly the employer could not reasonably be expected to know the claimant had a disability likely to put him at a substantial disadvantage in the assessment process. For that reason the duty to make reasonable adjustments did not arise in the circumstances of this case.

(My own view is that the line manager's knowledge should be imputed to the employer, and the Tribunal decision was incorrect on this point - see below My comment.)

Reasonable adjustments: not reasonable to make adjustments

In case the tribunal were wrong in saying the 'lack of knowledge' defence applied, the tribunal went on to consider whether there would have been a breach of the reasonable adjustment duty had the duty arisen.

The claimant had proposed a number of adjustments that in the view of the tribunal "apparently" could be reasonable. Accordingly the tribunal concluded that the claimant had discharged the onus placed upon him in the first part of the two-stage burden of proof set out in Section 17A (see shift in burden of proof), and that the onus of proof therefore passes to the employer. The tribunal decision discusses cases on this.

The tribunal said it had carefully considered the employer's argument that the arrangement for the initial sift of candidates for the Signal Person's post was arranged to comply with "best practice" in the Railway sector. It was clear that the post was a critical safety post and that ability to communicate clearly in an emergency was an important component of that particular post. While "modifying procedures for testing or assessment" is one of the examples provided in the DDA as a potential "reasonable step to take", the reasonableness has to be viewed - said the tribunal - in the context of the "extent to which taking the step would prevent the effect in relation to which the duty is imposed and the extent to which it is practicable for him to take the step. In evidence the claimant accepted there needed to be an oral element to the selection process, so abandoning totally the oral element of the selection process did not appear to be practicable and therefore a "reasonable adjustment".

This tribunal considered the other adjustments proposed:

Removing time parameters for the interview

The tribunal was not satisfied that there was any definitive time barrier set by the employer. The opening script included an indication to candidates that the interview would take "approximately 30 minutes". However the tribunal was satisfied that the time allocation was not immutable or inflexible. It was clear from the various prompts noted in the interviewer's notes that the claimant was given all the time he required to display the necessary competences.

The tribunal said that, on the evidence of the claimant, it was clear that the claimant did not prepare himself for this kind of competence-based interview. The claimant admitted at the hearing that he "only glanced" at some of the booklets sent out to him with the invitation to the assessment centre. He did not have previous experience of competence-based interviews. The tribunal accepted the evidence of the interviewer that the lack of preparation had more of an adverse impact on the claimant than the indication of the approximate time span the interviewer considered the process would take to complete. Examples of the claimant's lack of preparation for interview were perhaps disclosed in responses such as "can't really think off hand to be honest" to a request to give an example of communicating with a number of different people; failing to provide an additional example of team working even when asked for another situation and when asked for specifics of example of dealing with difficult people - no example was provided even after two prompts.

The claimant's explanation for his lack of examples was "with a speech impediment you try to keep it as short as you can". However, in answer to the tribunal's questions the claimant stated he "just wanted to leave, didn't want to give any more examples - could have but didn't".

Eye contact - use of single interviewer

The claimant said he found the use of a single interviewer at the assessment centre unsettling because the lack of eye-to-eye contact affected his stammer. He would have preferred two interviewers. The tribunal accepted as a fact that the claimant experienced difficulty with the lack of eye-to-eye contact given by the use of a sole interviewer. (Note: the decision does not explain this but I suspect the issue was that the one interviewer would be taking notes a lot of the time, and so would be unable to maintain eye contact. With two interviwers, one could take notes and one could maintain eye contact.)

However, the use of a second interviewer once the claimant's impediment was recognised by the interviewer was hardly practicable in the circumstances where the employer had no foreknowledge of the situation. Leaving aside the cost implications of using two interviewers, it did not appear to the tribunal that a second interviewer could be found without causing delay to the assessment process. It was not practicable therefore for the interviewer to find a second interviewer when he had no pre-knowledge of the claimant's difficulty.

The tribunal did not have sufficient evidence before it to reach a conclusion on the impact of postponing the interview once it had already commenced. That option appeared fraught with complications. It was the claimant's failure to bring his difficulty to the attention of those arranging this assessment process prior to attending the assessment centre and his lack of preparation, which essentially prevented him passing the assessment centre testing successfully.

Acknowledging the stammer

The interviewer could have acknowledged the claimant's impediment and reassured him that he could take his time. The tribunal accepted the claimant's evidence that this might have been reassuring to him. However the tribunal was also able to accept the fear expressed by the interviewer that any such comment might be misinterpreted.

The essential issue, however, was what would be the extent of such "mention" in preventing the effect or impairment on the claimant's interview performance. The tribunal could not be satisfied on the balance of probabilities, having noted the responses provided to some of the prompts given by the interviewer, that in the circumstances of this case taking that step would have the effect of enabling the claimant to provide examples in the competence areas he failed. It was not a step practicable to take with no foreknowledge of the claimant's situation.

Credit for past experience

The claimant seems to have suggested he should have been given credit for past experience. The employer argued this was not realistic. The point does not appear to have been specifically dealt with by the tribunal.

Conclusion

The tribunal concluded that the employer had provided an adequate and non-discriminatory explanation for the treatment of the claimant. The employer had discharged its burden of proof to show it did not commit an act of unlawful discrimination. The claimant's claim was dismissed.

My comments

Stammer as a 'disability'

It is particularly welcome that the Tribunal took into account the avoidance strategies being used by the claimant, as evidence for the stammer being a disability. This was not done in the Shaughnessy case back in 2000, but newer guidance (at least outside of Northern Ireland) strengthens the argument that avoidance should be taken into account. For more, see Hiding the stammer.

Lack of advance knowledge of the stammer - is the Tribunal decision wrong?

Like the Code of Practice for the rest of the UK, the Northern Ireland Disability Code of Practice Employment and Occupation (link to pdf on ECNI website) at para 5.15 says that If an employer's agent or employee (such as a line manager) knows, in that capacity, of an employee's disability, then the employer will not usually be able to claim that it does not know of the disability. The Code goes on to say: "Employers therefore need to ensure that where information about disabled people may come through different channels, there is a means - suitably confidential - for bringing the information together, to make it easier for the employer to fulfil its duties under the Act."

Courts and tribunals must take into account any part of the Code of Practice that appears to them relevant to any question arising in proceedings. It is odd that the tribunal did not do so here.

Admittedly, in this case there were multiple occasions when the claimant had failed to indicate he had a disability when invited to. There again, many people who stammer and many who do not would not class stammering as a 'disability' as a matter of general language. (See also Reluctance to be seen as 'disabled')

As a legal matter the tribunal would not be bound to follow the Code of Practice, having considered it.

However, I think the tribunal here most likely got it wrong, and that knowledge of the employee's line manager should be imputed to the employer. Something that an employee in that capacity knows is knowledge of the company. The Court of Appeal case cited by the tribunal was simply not considering whether a company should be treated as knowing what an employee knows (unless the employee is a medical professional). I think it is likely that future cases will follow that line, if the point is properly argued. The claimant in this case did not have legal representation.

Further danger of not telling employer in advance

The claimant here was held - under the 'lack of knowledge' defence - not to have rights because he had not told the employer of his stammer beforehand. However, even if that defence had not applied, the tribunal evidently felt that at least some of the requested adjustments would have been reasonable to make without prior notice. For example, it would not have been reasonable to obtain a second interviewer.

The approach in this case can be contrasted with Y v Calderdale Council (2003) where the claimant probably had a more severe stammer, which was very evident at the interview. The tribunal there considered that the employer could have taken immediate practicable action to prevent the disadvantage suffered by the applicant, by adjourning the question and answer session and devising, with the co-operation of the applicant, a suitable format for this element of the recruitment process which would have given the applicant an equal opportunity to that of the other candidates.

Stammer found not to be main factor

Even if the employer had the relevant knowledge of the stammer, the claim would not have succeeded in this case. The Tribunal considered the claimant's lack of preparation for the competence-based interview to be a much bigger factor than the stammer.

This can be contrasted with the Wakefield case, where the tribunal stressed that the failure of the candidate's answers "to show in-depth experiences and examples" was just what one might expect from avoiding difficult words due to his stammer. In the present case, the tribunal's initial decision that he had a disability acknowledged the claimant's avoidance strategies, but it evidently considered that lack of preparation rather than avoidance was the reason he failed the competence-based interview.

Number of interviewers

The claimant said he would prefer two interviewers rather than one, from an eye contact point of view. I suspect the issue was that the one interviewer would be taking notes a lot of the time, and so would be unable to maintain eye contact. The claimant evidently found the lack of eye contact made things more difficult for him. With two interviewers, one could take notes and one could maintain eye contact.

Some who stammer may well not have this problem of wanting to retain someone's eye contact. Also, another problem can in fact be having too many interviewers. I would say employers should not make assumptions as to what an individual would find easiest, but should ask the person. See on my page of reasonable adjustment examples: Oral interviews: Number of interviewers.

Means of assessing oral skills

Though it was not a vital part of the decision, in accepting that an oral element was necessary the tribunal refered to the fact that the post was a critical safety post and that ability to communicate clearly in an emergency was an important component of that particular post.

Northern Ireland

The Disability Discrimination Act in Northern Ireland is, to a large extent, the same as for the rest of the UK. However, amendments to it are now at matter for the Northern Ireland Assembly. See Northern Ireland.